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Kentucky and Virginia Resolutions

The Kentucky and Virginia Resolutions, initially drafted by Thomas Jefferson and James Madison, respectively, were issued by the Kentucky and Virginia legislatures in response to the federal Alien and Sedition Acts of 1798. The Resolutions declared that the several states are united by compact under the Constitution, that the Constitution limits federal authority to certain enumerated powers, that congressional acts exceeding those powers are infractions of the Constitution, and that each state has the right and duty to determine the constitutionality of federal laws and prevent application of unconstitutional federal laws in its own territory.

The Kentucky Resolutions were introduced in the Kentucky House of Representatives by John Breckinridge and adopted in November of 1798.1 The Virginia Resolutions were sponsored in the Virginia House of Delegates by John Taylor and adopted in December 1798.2

The Resolutions by Jefferson and Madison were provoked by the Alien and Sedition Acts adopted by a Federalist-dominated Congress during the Quasi-War with France; those Acts gave the president the authority to deport any alien whom he thought a threat and made it illegal to criticize the president or the Congress.3 Dozens of people were prosecuted under the Sedition Act, with prosecutions targeted at newspaper editors who favored the new Democratic-Republican party - Jefferson’s party.4 Seeing such political prosecutions of free speech as a fundamental threat to the republic, Jefferson referred to this period as a “reign of witches.”5

The problem faced by Jefferson and the Democratic-Republicans was how to respond to the Alien and Sedition Acts at a time when every federal judge was a Federalist and when the Federalists had a renewed nationalist popularity in light of the XYZ Affair (in which the French foreign minister demanded a bribe to even meet with U.S. envoys). The chosen response, the Kentucky and Virginia Resolutions, was especially controversial because of Jefferson’s claim that states could “nullify” federal action which they believed to be unconstitutional (although that term was deleted from the final version of the resolutions adopted in Kentucky) and Madison’s claim that states could “interpose” to block such federal action.

The Resolutions garnered support from none of the other fourteen states. Four states made no response to Kentucky and Virginia's request for support and ten states expressed outright disapproval. Most states insisted that under the Supremacy Clause of the Constitution (Article VI), the states had no power to block enforcement of federal laws and that the courts should be relied upon to strike down unconstitutional laws (a position which both Jefferson and Madison had endorsed in the context of the Bill of Rights).6 In fact, the 1798 elections resulted in an increase in Federalist control of the Congress. Many years later, as states’ rights controversies threatened a sectional divide in the nation, Madison would claim, somewhat disingenuously, that the Resolutions were never intended actually to block application of a federal law but, rather, were intended to rally political opposition to the Alien and Sedition Acts.7

At the time of their passage, authorship of both documents was known to only a few close associates.8 Secrecy was necessary because Jefferson, himself the nation’s vice president, might be charged with sedition if he or Madison, his closest political ally, openly announced that congressional acts were unconstitutional. Madison had left Congress in 1797 before returning to the Virginia House of Delegates in 1798, but his affiliation with Jefferson was well-known.

On philosophical grounds, Jefferson deplored the Alien and Sedition Acts, describing them to Madison as “palpably in the teeth of the constitution,” an encroachment on rights protected by the First Amendment, and designed to suppress the Democratic-Republican press.9 Jefferson and Madison were not alone in their outrage over the laws. The state of Kentucky was reported as “unanimous in execrating the measures.”10 In Virginia, the Freeholders of Prince Edward County addressed disapproval of “the odious alien and sedition bills” directly to President John Adams.11

Jefferson’s Kentucky Resolutions employed bolder language than that used by Madison, stating that when the federal government “assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Jefferson’s original wording had gone even further: “[W]here powers are assumed which have not been delegated,” he contended, “a nullification of the act is the rightful remedy.”12 Jefferson’s references to nullification were eliminated by the Kentucky legislature. Madison’s Virginia Resolutions were somewhat more temperate in tone but also challenged federal authority. They asserted that the states were “duty bound, to interpose” whenever the federal government assumed “a deliberate, palpable and dangerous exercise” of powers not granted by the Constitution.13 Madison did not prescribe the form of interposition. He purposefully used “general expressions,” freeing the other states to consider “all the modes possible” for concurring with Virginia.14

In response to the criticism from other states, Virginia’s Report of 1800 (drafted by Madison) and the Kentucky Resolutions of 1799 (a second set of resolutions defending the first) were passed.15 Madison defended the Virginia Resolutions and warned against the transformation of “the republican system of the United States into a monarchy.”16 The Kentucky Resolutions of 1799 are of uncertain authorship, but revived Jefferson’s nullification language, asserting that “the several states who formed [the Constitution] ... have the unquestionable right to judge of its infraction; and, That a nullification...of all unauthorized acts...is the rightful remedy.”17

Though the other states rejected the Kentucky and Virginia Resolutions, the measures served effectively as political propaganda and helped unite the Democratic-Republican party.18 In 1800, the Democratic-Republican candidate, Thomas Jefferson, would win the presidency, essentially defusing the crisis. The Sedition Act expired in March 1801.19 Interest in the Kentucky and Virginia Resolutions was renewed as the sectional divide in the country grew in the nineteenth century.20

1. Jefferson’s Draft, [before October 4, 1798], in PTJ, 30:536-43. Transcription available at Founders Online. See also Jefferson’s Fair Copy, [before October 4, 1798], in PTJ, 30:543-49. Transcription available at Founders Online. Resolutions Adopted by the Kentucky General Assembly, November 10, 1798, in PTJ, 30:550-56. Transcription available at Founders Online.